*1
B.H., the natural mother of X.H., sought review of the
court of appeals unpublished opinion affirming the district court's order
terminating the parent-child relationship. The district court proceeded to trial
and granted the state's motion to terminate parental rights, despite
notice never having been given to any Indian tribe or
the Bureau of Indian Affairs that X.H. might be an
Indian child within the meaning of the federal Indian Child
Welfare Act. The court of appeals affirmed, holding that the
applicability of the Act had not been established.

Because
the El Paso County Department of Human Services and the
district court had reason to believe that a federally recognized
Indian tribe could consider X.H. to be a tribal member
or the eligible biological child of a member, potentially affected
tribes were entitled to notice of the proceedings prior to
any determination by the court. The judgment of the court
of appeals is therefore reversed and the case is remanded
with instructions to order that notice be given in accordance
with the provisions of the Indian Child Welfare Act and
the Colorado Children's Code. If it is ultimately determined, after
proper notice, that X.H. is not an Indian child, the
district court's order terminating parental rights shall stand affirmed. If
X.H. is determined to be an Indian child, the district
court must proceed in accordance with the Act.

I.

In
June 2004, the El Paso County Department of Human Services
filed a petition in the juvenile division of the district
court, alleging that X.H. was a dependent and neglected child.
As a result of her mother's methamphetamine use and related
criminal activity, X .H. had been placed in foster care
earlier that month. In July, following the department's ?diligent
search?
for family members, including the child's mother and father, it
filed a report with the court, characterizing the child's mother,
B.H., as ?Native
American/White?
and the child's maternal grandmother as ?Native
American.?
The grandmother had reported that her great-great grandmother had walked
the Trail of Tears; that she was trying to register
with the Cherokee tribe at that very time; and that
she had officially adopted her Indian name. Neither the department
nor the court made further inquiry into X.H.'s Indian heritage
or attempted to verify her status as an Indian child.

On
January 24, 2005, the department filed a motion to terminate
the parent-child legal relationship. When the parties appeared for the
termination hearing on April 20, 2005, however, the department immediately
requested a continuance, recommending more time for the mother to
comply with her treatment plan and placement of the child
with her grandmother. Only the guardian ad litem objected, arguing
that any progress by the mother was inadequate. Focusing on
the child's residence in the same foster placement for over
ten months, the court found the state's plan hopeful but
insufficient.

On
the following day, just before the termination hearing was to
begin, the department brought the possible applicability of the Indian
Child Welfare Act FN1
to the court's attention, informing the court that the child's
grandmother had mentioned her Native American ancestry in a meeting
the day before. In response to the guardian's expressed concerns
about dilatory tactics and the court's query about an earlier
alleged disclaimer by the child's mother, the mother's attorney represented
that she disputed ever having been asked about her Native
American roots. The attorney further represented that the child's grandmother
had disclosed to the department, as early as August or
September 2004, the fact that her own grandmother had received
tribal scholarships. The court acknowledged that the child's Indian heritage
had clearly been reported in the search documents, and it
reprimanded the department for failing to investigate further during the
ensuing ten months. Nevertheless, rather than postpone the termination hearing
until notice could be given according to the Act, which
the court felt would interfere with permanency for the child,
it took testimony to resolve for itself the applicability of
the Act.

*2
The court heard directly from both the department of human
services caseworker and the child's grandmother. The caseworker acknowledged that
she had never personally discussed the Indian Child Welfare Act
with the child's mother and that she was not familiar
with tribal enrollment requirements. She also testified, however, that the
child's grandmother had expressed concern about X.H. being disconnected from
her Native American cultural traditions. The grandmother herself testified that
she was of Cherokee descent; that she had been actively
researching her heritage for more than a year; and that
she was in direct contact with the ?Cherokee
Nation through Alabama.?
When questioned about a previous concession that X.H. should remain
with the foster family, the grandmother explained that she had
since come to realize how difficult it would be for
her to maintain the contact with her granddaughter anticipated under
the promised arrangement. While she conceded that she had never
before brought the issue of her grandchild's Indian status to
the court's attention, she maintained that she had raised it
numerous times with the department.

Concluding
that the Act did not apply, the court articulated several
reasons for its decision. The court found as a matter
of fact that the mother had initially denied the applicability
of the Act, and even though she may have been
under the influence of methamphetamine at the time, the long
pendency of the case had given her an opportunity to
correct that statement if she wished. The court also considered
it suspicious that the child's grandmother had not raised the
applicability of the Act before the court until a continuance
was denied. The court was openly skeptical that the grandmother
expressed concern for protecting X.H.'s Indian heritage only after contact
with her became an issue. Finally, although the court indicated
that evidence of the child's eligibility for membership in a
federally recognized tribe was insufficiently convincing either way, it concluded
that neither the child nor her mother was currently a
tribal member, and the expectation of a response to the
grandmother's inquiries from the Cherokee tribe was insufficient to trigger
ICWA applicability.

The
hearing proceeded on the issue of termination. In light of
the mother's 15-year methamphetamine habit, her admitted neglect and abuse
of her children, and her incarceration, the court terminated her
parental rights. Largely to avoid further disruption in X.H.'s life,
the court chose not to place her with her grandmother.

The
mother appealed, assigning error to the court's failure to comply
with the tribal notice requirements of the federal Indian Child
Welfare Act and the Colorado Children's Code. Acknowledging that ?it
may have been better practice to follow the notice procedures
...
upon learning that there was some contention of Indian ancestry,?
the court of appeals nevertheless affirmed. The appellate court held
that while the tribe's determination of its membership would be
conclusive, the trial court must ascertain whether the child is
Indian in the absence of such a determination. As it
was undisputed that neither X.H. nor her mother was a
?registered?
member of an Indian tribe, the court of appeals concluded
that ICWA applicability had not been proven.

II.

*3
In 1978, Congress enacted the Indian Child Welfare Act, 92
Stat. 3069, 25 U.S.C. §§ 1901-1963,
out of a mounting concern over child welfare practices resulting
in the involuntary separation of alarming numbers of Indian children
from their families for placement in non-Indian homes or institutions.
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29
(1989). Congress found that ?the
United States has a direct interest, as trustee, in protecting
Indian children who are members of or are eligible for
membership in an Indian tribe.?
25 U.S.C. § 1901(3).
In the Act, it therefore established minimum standards for the
removal of Indian children from their families. 25 U.S.C. § 1902.

The clear policy choice of the
Act is to place Indian children within the Indian community whenever possible.
Holyfield,
490 U.S. at 37. In furtherance of that goal, the Act vests jurisdiction
over custody matters, under certain circumstances, in the tribal courts,
while prescribing procedural and substantive standards, including a right
of intervention by Indian tribes in proceedings that remain in the state
courts. E.g.,
25 U.S.C. §§ 1911, 1912; see
Holyfield,
490 U.S. at 36-37. The Colorado General Assembly has expressly provided
for compliance with, and consistent application of, the federal Act in
the Colorado Children's Code. See
§ 19-1-126, C.R.S. (2005).

In the past, the United States
Supreme Court has emphasized the unique relationship that exists between
the federal government and Indian tribes. See
Montana v. Blackfeet
Tribe of Indians, 471
U.S. 759, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). The United States Constitution
vests the federal government with exclusive authority over Indian affairs,
U.S. Const. art. 1, § 8, cl. 3, based upon the historical trust
relationship between the United States and Indian tribes. Blackfeet
Tribe, 471 U.S. at
764, 766. As a result of this unique trust relationship, even standard
principles of statutory construction do not have their usual force in
matters involving Indian law. Id.
at 766. Rather, the Supreme Court has held that statutes enacted for the
benefit of Indians, as well as regulations, guidelines, and state statutes
promulgated for their implementation, must be liberally construed in favor
of Indian interests. Id.;
see Guidelines for
State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67585-86
(Nov. 29, 1979).FN2

The
ICWA pertains to various child custody proceedings involving Indian children,
including the termination of parental rights. See
25 U.S.C. §§ 1903(1)
and (4), 1911, 1912. A state is required by the
Act to provide notice to the child's or its parent's
tribe, or the Bureau of Indian Affairs if the tribe
cannot be identified or located, whenever the court knows or
has reason to know that an Indian child is involved.
25 U.S.C. § 1912(a).
FN3
By Colorado's implementing legislation, in every termination of parental rights
proceeding,
the petitioning party has an affirmative duty to make continuing
inquiries to determine whether the subject child is an Indian
child and to identify any particular tribal affiliation, § 19-1-126(1)(a),
and to give notice in the manner prescribed by statute
FN4
whenever the petitioning or filing party knows or has reason
to believe that the child who is the subject of
the proceeding is an Indian child, § 19-1-126(1)(b).
Under the ?reason
to know?
or ?reason
to believe?
standards, the state's obligation to notify potentially concerned tribes or
the BIA necessarily arises preliminary to an ultimate determination of
the child's Indian status. See
In
re Guardianship of J.O.,
327 N.J.Super. 304, 743 A.2d 341, 346-47 (N.J.Super.Ct.App.Div.2000) (citing numerous
state court opinions reaching this conclusion with regard to the
federal Act).

*4
The Act defines an ?Indian child? as any unmarried person under the age
of eighteen, who is either a member of an Indian tribe or eligible for
membership and the biological child of a member. 25 U.S.C. § 1903(4).
FN5
Tribal membership, however, is not defined by the Act. Membership for
purposes of the Act is instead left to the control of each individual
tribe. Guidelines, 44 Fed.Reg. at 67586; Cohen's
Handbook of Federal Indian Law
§ 3.03[3] (Nell Jessup Newton, et al. eds., 2005) (?[O]ne of
an Indian tribe's most basic powers is the authority to determine questions
of its own membership .?). Depending upon an individual tribe's criteria
for membership, or its process for acquiring or establishing membership,
which may or may not include some form of formal enrollment or registration,
the ability of a court to ascertain membership in a particular tribe without
a tribal determination may vary greatly. See
United States v.
Broncheau, 597 F.2d
1260, 1263 (9th Cir.1979); In
re Baby Boy Doe, 123
Idaho 464, 849 P.2d 925, 931 (Idaho 1993); In
re Termination of Parental Rights to Arianna R.G.,
259 Wis.2d 563, 657 N.W.2d 363, 369 (Wis.2003) (while many tribes require
registration or enrollment as a condition of membership, some automatically
include descendents of members); Guidelines, 44 Fed.Reg. at 67586 (some
tribes do not keep written rolls and others have rolls that only list
members as of a certain date).

Not
only are the tribes themselves therefore the best source of
information concerning tribal membership, see
Guidelines, 44 Fed.Reg. at 67586, but the Act also recognizes
that Indian tribes have a separate interest in Indian children,
distinct from, but equivalent to, parental interests, Holyfield,
490 U.S. at 52. Consequently, tribes must have a meaningful
opportunity to participate in determining whether the child is Indian,
e.g.,
Arianna
R.G.,
657 N.W.2d at 368, and to be heard on the
issue of ICWA applicability, e.g.,
In
re H.D.,
11 Kan.App.2d 531, 729 P.2d 1234, 1239 (Kan.Ct.App.1986). An Indian
tribe, like an Indian parent from whom custody was removed,
is therefore permitted by the Act to petition any court
of competent jurisdiction to invalidate an order terminating parental rights
upon a showing that notice was not provided as required
by the Act. See
25 U.S.C. § 1914.

Precisely
what constitutes ?reason
to know?
or ?reason
to believe?
in any particular set of circumstances will necessarily evade meaningful
description. As in other contexts, reasonable grounds to believe must
depend upon the totality of the circumstances and include consideration
of not only the nature and specificity of available information
but also the credibility of the source of that information
and the basis of the source's knowledge. In light of
the purpose of the Act, however, to permit tribal involvement
in child-custody determinations whenever tribal members are involved, the threshold
requirement for notice was clearly not intended to be high.

*5
The Guidelines set forth some examples of circumstances creating ?reason
to believe,?
which include:

(i)
Any party to the case, Indian tribe, Indian organization or
public or private agency informs the court that the child
is an Indian child.

(ii)
Any public or state-licensed agency involved in child protection services
or family support has discovered information which suggests that the
child is an Indian child.

...

(v)
An officer of the court involved in the proceeding has
knowledge that the child may be an Indian child.

44
Fed.Reg. at 67586. Consistent with the above circumstances, state courts
have given the notice obligation a ?broad
reading,?
redressing notice violations when the child's Indian status is unclear.
In
re M.P.C.,
153 Vt. 275, 571 A.2d 627, 633-34 (Vt.1989).

A
number of courts have directly held that the mere assertion
of Indian descent is enough to trigger notice to the
tribe. E.g.,
In
re Jeffrey A.,
103 Cal.App.4th 1103, 1107-08, 127 Cal.Rptr.2d 314 (Ct.App.2002) (notice required
when state child protection agency discovers that the child ?may
have Indian ancestry?);
In re
Dependency
of T.L.G .,
126 Wash.App. 181, 108 P.3d 156, 158 (Wash.Ct.App.2005) (notice required
when child ?possibly?
an Indian child).

Many
other courts have supported this idea by implication, requiring evidence
of proper notice in similar circumstances. H.D.,
11 Kan.App.2d 531, 729 P.2d 1234 (mother informed social worker
and court that she was of Indian descent); In
re Brooke C.,
127 Cal.App.4th 377, 25 Cal.Rptr.3d 590, 594 (Cal.Ct.App.2005) (parents advised
social worker of possible Indian heritage); In
re Jennifer A.,
103 Cal.App.4th 692, 699, 127 Cal.Rptr.2d 54 (Ct.App.2002) (report to
court contained parents' claim of Indian heritage); M.C.P.,
571 A.2d at 632 (trial court informed on numerous occasions
that both the child and her adoptive parents were of
Indian origin); In
re J.W.,
498 N.W.2d 417, 419 (Iowa Ct.App.1993) (undisputed that mother had
Native American blood, and she was a member of one
tribe and eligible for membership in another); People
in re C.H.,
510 N.W.2d 119, 123 (S.D.1993) (mother claimed that she was
half-Indian). In contrast, an out-of-context allusion to an Indian tribe
may be deemed insufficient to require notice. See
In the Matter
of Johanson,
156 Mich.App. 608, 402 N.W.2d 13, 15-16 (Mich.Ct.App.1986) (only mention
of an Indian tribe was in reference to renting a
house on a reservation).

A
few courts have required slightly more before deeming the notice
obligation to have attached. For example, courts in New Jersey
and North Dakota have required some evidence or offer of
proof to support an assertion by counsel. J.O.,
743 A.2d at 347 (affidavit would suffice to trigger notice
if ?amorphous?
statement by counsel is the only indication of Indian heritage);
In
re A.L.,
623 N.W.2d 418, 421 (N.D.2001) (while party cannot rely solely
upon ?vague?
statement by counsel, testimony of the child's biological parents would
be enough to require notice); see
also In
re Appeal in Maricopa County,
136 Ariz. 528, 667 P.2d 228, 232-33 (Ariz.Ct.App.1983) (paternity of
putative Indian father must be acknowledged or established before notice
provisions apply).

*6
Because membership is peculiarly within the province of each Indian tribe,
sufficiently reliable information of virtually any criteria upon which
membership might be based must be considered adequate to trigger the notice
provisions of the Act. These criteria have included, but are not necessarily
limited to, such considerations as enrollment, blood quantum, lineage,
or residence on a reservation. See
Broncheau,
597 F.2d at 1263. Because the protection of a separate tribal interest
is at the core of the ICWA, see
Holyfield,
490 U.S. at 52, otherwise sufficiently reliable information cannot be
overcome by the statements, actions, or waiver of a parent, id.
at 49, or disregarded as untimely, T.L.G.,
108 P.3d at 162 n. 26 (citing In
re Junious M., 144
Cal.App.3d 786, 193 Cal.Rptr. 40 (Cal.Ct.App.1983)).

III.

In light of the Act's intent
to permit Indian tribes to decide for themselves whether children whose
custody is at issue are tribal members or eligible children of tribal
members, there can be little doubt, on the record before us, that notice
should have been given pursuant to both federal and state law. As a result
of its ?diligent search,? the department produced a report acknowledging
X.H.'s Indian ancestry through her mother and her grandmother. Although
the department's information did not include specific attribution, neither
was it challenged or impeached, and it was clearly relied upon for representation
to the court. Even in the absence of the grandmother's direct testimony
of Indian ancestry, the official report of the petitioning authority would
be sufficient to provide reason to believe the child was of Indian ancestry.

Importantly,
the department never disputed and the district court never failed
to credit the child's Indian ancestry. Although the court disbelieved
the grandmother's protestations that she attempted to raise the issue
earlier with the department and mistrusted her belated expression of
concern after denial of a continuance, it openly accepted the
possibility that both the child's grandmother and mother might be
eligible for membership in the Cherokee tribe as a result
of their ancestry. It simply found that fact insufficient to
trigger the Act, including the notice requirement. Like the court
of appeals, the district court clearly equated membership in a
tribe with formal enrollment or registration, and for that reason
alone found that neither the child nor her mother was,
at that time, a member of a federally recognized Indian
tribe.

The
record contains no evidence, and neither the district court nor
the court of appeals purported to take judicial notice, of
any law or practice of any federally recognized Cherokee tribe
suggesting a membership requirement of formal enrollment. Rather, it remains
unclear whether a federally recognized Cherokee tribe might have found
X.H. or her mother to have been a member had
it been given the opportunity to decide the question.FN6
In fact, the lower courts simply misapprehended the requirements for
membership in a tribe, as contemplated by the Act, and
therefore found that there was not even an allegation, much
less evidence, of current tribal membership.

*7
Whether the child's mother denied applicability of the Act or
not, and whether the child's grandmother actually expressed concerns about
protecting the child's Indian heritage before the day of trial
or not, the petitioning or filing party (the department) was
clearly aware of the child's Indian ancestry, imposing upon it
a duty of further inquiry and notice pursuant to the
Act. In the circumstances of this case, including the identification
of a small class of potentially concerned tribes, the department
failed to fulfill its statutory obligation. Because it cannot be
determined as a matter of law that neither the child
nor her mother is a tribal member, the notice requirements
of the Act must be met. See
Junious
M.,
193 Cal.Rptr. at 46.

IV.

Accordingly,
the judgment of the court of appeals is reversed and
the matter is remanded with instructions to order that notice
be given in accordance with the provisions of the Indian
Child Welfare Act and the Colorado Children's Code. If it
is ultimately determined, after proper notice, that X.H. is not
an Indian child, the district court's order terminating parental rights
shall stand affirmed. If X.H. is determined to be an
Indian child, the district court must proceed in accordance with
the Act.

FN2.
The Guidelines were authored by the Bureau of Indian Affairs
and represent the Department of the Interior's interpretation of the
ICWA. They are not binding. 44 Fed.Reg. at 67584; see
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 52 n. 26, 109 S.Ct. 1597, 104
L.Ed.2d 29 (1989). Nevertheless, they have been considered persuasive by
state courts. E.g.,
In
re Junious M.,
144 Cal.App.3d 786, 193 Cal.Rptr. 40, 44 n. 7 (Cal.Ct.App.1983)
(Guidelines entitled to ?great
weight?);
In
re H.D.,
11 Kan.App.2d 531, 729 P.2d 1234, 1238 (Kan.Ct.App.1986) (Guidelines establish
pretrial requirements); In
re Dependency and Neglect of N.A.H.,
418 N.W.2d 310, 311 (S.D.1988) (?better
practice?
to follow the Guidelines).

FN3.
In describing the Act's requirements, the Guidelines characterize the standard
for notice as ?reason
to believe.?
Guidelines, 44 Fed.Reg. at 67586.

FN4.
The statute prescribes that notice shall be given to the
parent or Indian custodian, the designated tribal agent, the highest-elected
or appointed tribal judge, and the social services department of
the tribe. § 191126(1)(b).
If the tribe does not have a designated agent, notice
shall be given to the highest-elected or appointed official of
the child's tribe. Id.

FN5.
?
?Indian
child?
means any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and
is the biological child of a member of an Indian
tribe.?
25 U.S.C. § 1903(4).

FN6.
There are three federally recognized Cherokee tribes: the Cherokee Nation
of Oklahoma, the Eastern Band of Cherokee Indians of North
Carolina, and the United Keetoowah Band of Cherokee Indians. Indian
Entities Recognized and Eligible to Receive Services from the United
States Bureau of Indian Affairs, 68 Fed.Reg. 68180, 68181, 68183
(Dec. 5, 2003). While all of them appear to have
an enrollment procedure, it is far from clear that enrollment
is a prerequisite to membership for ICWA purposes. See
Cherokee Nation, Registration Instructions, http://www.cherokee.org/ (follow ?Services?
hyperlink; then follow ?Registration?
hyperlink) (last visited June 19, 2006); Cherokee North Carolina, Genealogy,
http:// www.cherokee-nc.com/geneology.php?Name=Tribal Enrollment (last visited June 19, 2006); United Keetoowah
Band of Cherokee Indians, Enrollment, http:// unitedkeetoowahband.org/enrollment.htm (last visited June
19, 2006). For example, the Constitution of the Cherokee Nation
(of Oklahoma) provides that its citizens are original enrollees or
descendants of original enrollees listed on rolls dated in the
1860's. Cherokee Nation Const. art. IV, § 1.
The Constitution of the United Keetoowah Band states that the
governing body shall prescribe the rules governing membership, United Keetoowah
Band Const. art IV, § 2,
and the current requirement appears to be at least 1/4
Keetoowah Cherokee blood, see
United Keetoowah Bank of Cherokee Indians, Enrollment, http:// unitedkeetoowahband.org/enrollment.htm.